Gregory Franklin v. A. Martinez ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY ALLEN FRANKLIN, No. 19-55726
Plaintiff-Appellant, D.C. No. 2:15-cv-08379-CBM-KK
v.
MEMORANDUM*
A. H. MARTINEZ, Lieutenant, in individual
and official capacity; et al.,
Defendants-Appellees,
and
SOTO; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
California state prisoner Gregory Allen Franklin appeals pro se from the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court’s summary judgment and judgment on the pleadings in his 42 U.S.C.
§ 1983 action alleging various constitutional violations. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo, 775 F.3d 1182,
1191 (9th Cir. 2015) (summary judgment for failure to exhaust administrative
remedies); Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009) (judgment on the
pleadings). We affirm.
The district court properly granted summary judgment on Franklin’s claims
against defendants Rowe, Harris, Martinez, and Wofford because Franklin failed to
exhaust his administrative remedies and failed to raise a genuine dispute of
material fact as to whether administrative remedies were effectively unavailable.
See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (proper exhaustion requires “using
all steps that the agency holds out, and doing so properly (so that the agency
addresses the issues on the merits).” (emphasis, citation, and internal quotation
marks omitted)); Cal. Code Regs. tit. 15, § 3084.2(a)(3) (2011) (“The inmate or
parolee shall list all staff member(s) involved and shall describe their involvement
in the issue. . . .”); see also Soto v. Sweetman, 882F.3d 865, 872-73 (9th Cir. 2018)
(to avoid summary judgment, a pro se inmate must submit at least “some
competent evidence” that creates a genuine dispute of fact for trial).
The district court properly granted judgment on the pleadings on Franklin’s
claim against defendant Boroquez because Franklin failed to allege facts sufficient
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to show he filed his action within the two-year statute of limitations or was entitled
to equitable tolling. See Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir.
2007) (for § 1983 claims, federal courts apply the forum state’s statute of
limitations; California’s statute of limitations is two years for personal injury
actions); see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)
(“[D]iscrete . . . acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges.”); Ramirez v. Yates, 571 F.3d 993, 997 (9th
Cir. 2009) (observing that “[o]rdinary prison limitations on [the petitioner’s] access
to the law library and copier . . . were neither ‘extraordinary’ nor made it
‘impossible’ for him to file his petition in a timely manner”).
Franklin’s motion to extend the time to file his reply brief (Docket Entry No.
28) is granted. Franklin’s reply brief has been filed at Docket Entry No. 29.
AFFIRMED.
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